Bush's Spy Program and the Fourth Amendment

In an earlier post (“King George’s Constitution”), I asserted that the recently disclosed Bush spy program is both unconstitutional and unlawful. Since then, defenders of the program have attacked its critics as “hysterical” and “irresponsible,” and have offered a mélange of arguments for the program's legality, or at least its possible legality. I want to address those arguments. In this post, I will focus on the Fourth Amendment. In a later post, I will address the statutory issue.

It is settled law that the Executive may not engage in wiretapping or other forms of electronic surveillance of the contents of private communications without probable cause and a warrant. This is the unambiguous and long-standing understanding of the Fourth Amendment. The question posed by the Bush spy program is whether those requirements are inapplicable, and the Executive is therefore free to engage in electronic surveillance of American citizens on American soil without a warrant or probable cause or, indeed, without any review by the Congress or the judiciary, if it asserts that it is protecting the nation from terrorists.

The most relevant precedent is United States v. United States District Court (Keith). Decided in 1972, Kieth involved a prosecution for conspiracy to blow-up a CIA office. The Executive argued that in order “to gather intelligence information” that was “necessary to protect the nation from attempts . . . to attack and subvert the existing structure of the Government,” it was constitutionally entitled to engage in electronic surveillance of American citizens without complying with the requirements of the Fourth Amendment. In Kieth, the Supreme Court unanimously and unequivocally held that, even in national security investigations, the President had no constitutional authority to conduct electronic surveillance of American citizens on American soil without a judicially issued search warrant based on a finding of probable cause.

In reaching this decision, the Court carefully considered and emphatically rejected the Executive’s demand for an exemption in national security investigations from the ordinary requirements of the Fourth Amendment. It is worth setting out the Court’s reasoning in detail:

· The President has a fundamental responsibility and power “to protect our Government against those who would subvert or overthrow it by unlawful means. . . . In the discharge of this duty, the President . . . may find it necessary to employ electronic surveillance to obtain intelligence information on the plans of those who plot unlawful acts against the Government.”

· But “the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards. . . . History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘[national] security.’”

· “These Fourth Amendment freedoms cannot properly be guaranteed if [national] security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. [Those] charged with [the] investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. . . . The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.,”

· “The Government argues that the special circumstances applicable to [national] security surveillances necessitate [an] exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. . . . The Government . . . insists that courts ‘as a practical matter would have neither the knowledge nor the techniques necessary to determine whether there was probable cause to believe that surveillance was necessary to protect national security.’ [Moreover,] the Government believes that disclosure to a magistrate of all or even a significant portion of the information involved in domestic security surveillances ‘would create serious potential dangers to the national security and . . . would create a greater danger of leaks.’”

· “These contentions . . . merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. . . . But we do not think a case has been made for the requested departure from Fourth Amendment standards. . . . . We cannot accept the Government's argument that [national] security matters are too subtle and complex for judicial evaluation. . . . .Nor do we believe prior judicial approval will fracture the secrecy essential to official intelligence gathering. . . . Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values.”

Now, one might think that the Court’s unanimous opinion in Keith resolved the issue of the Bush spy program, but it does not, because the Court put aside, as not before it, the constitutionality of government surveillance of “foreign powers or their agents.” Although the reasoning of Keith would seem to apply to foreign as well as domestic threats to the national security, at least insofar as the surveillance involves wiretapping American citizens within the United States, Keith left the question unresolved. Thus, it is possible to argue, even after Keith, that Bush’s spy program, which purportedly is directed at those who communicate with foreign-based terrorists or terrorist organizations, is not necessarily prohibited by established Supreme Court precedent.

At the same time, however, it is important to emphasize that no court has ever held that the Executive can engage in electronic surveillance of American citizens on American soil in the context of “foreign intelligence” investigations without complying with the Fourth Amendment. Defenders of the Bush program have trotted out phrases from lower court opinions that have merely assumed arguendo that such searches might be permissible, but none has ever even addressed the question. Indeed, in the opinion cited most often by the defenders of the Bush spy program, In re: Sealed Case, the electronic surveillance at issue was based upon both a warrant and probable cause. The “precedent” relied upon by the administration’s defenders is not “precedent” at all.

The Court in Kieth left open the precise application of the Fourth Amendment to foreign intelligence activities, but the logic of the opinion leaves little doubt that the Bush spy program violates the Fourth Amendment. Although electronic surveillance of “foreign agents” in the United States may call for some refinements in the application of the Fourth Amendment’s probable cause and warrant requirements, it is difficult to see why those requirements should be deemed wholly inapplicable, especially to a program that appears to lack even reasonable internal safeguards. The “constitutional values” that the Court emphasized in Kieth are equally endangered in the foreign intelligence context, and a critical issue in both the domestic and foreign intelligence situations is who decides whether the target of the surveillance is in league with the terrorists. There is no more reason to trust members of the Executive branch in one case than in the other. In neither circumstance should such officials serve as the “sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.”

Moreover, even if there is some justification for granting the Executive greater deference in the realm of “foreign” than “domestic” surveillance, there has been no showing whatever that the Bush program has been carefully designed to focus specifically and narrowly on “foreign agents,” or even what that concept means in the context of the Bush program, which sweeps American citizens within its ambit without any showing that they are themselves “foreign agents” or terrorists. Absent (at the very least) a scrupulously designed and applied set of internal safeguards, the Bush spy program – a secret program – should be held to violate the Fourth Amendment.

Comments

[Shawn Bjorklund, Esq.]

See also:

ECHELON AND THE LEGAL RESTRAINTS ON SIGNALS INTELLIGENCE:
A NEED FOR REEVALUATION

at:

http://www.law.duke.edu/journals/dlj/articles/dlj50p1467.htm#H1N6

This is a pre 9/11 article, but still interesting.

[Andrew Hyman]

Professor Stone:

Is the following case relevant? United States v. Ramsey, 431 U.S. 606 (1977). Here's the beginning of the Court's opinion:

Customs officials, acting with "reasonable cause to suspect" a violation of customs laws, opened for inspection incoming international letter-class mail without first obtaining a search warrant. A divided Court of Appeals for the District of Columbia Circuit held, contrary to every other Court of Appeals which has considered the matter, that the Fourth Amendment forbade the opening of such mail without probable cause and a search warrant. 176 U.S. App. D.C. 67, 538 F.2d 415. We granted the Government's petition for certiorari to resolve this Circuit conflict. 429 U.S. 815 . We now reverse.

Thus, it seems to be settled law that the Executive may sometimes engage in surveillance of the contents of private communications without a warrant. This has been the unambiguous and long-standing understanding of the Fourth Amendment. Right?

[Geoffrey Stone]

Response to Andrew Hyman:

Ramsey isn't relevant, except to bolster my argument. The Court has long held that warrantless border searches for contraband are permissible. In Ramsey, the customs inspector opened a bulky package because he had reasonable grounds to believe it contained narcotics. The statute authorizing this form of search, consistent with two hundred years of practice, expressly prohibited customs officials to read any correspondence, even at the border, "absent a search warrant."

[Andrew Hyman]

Thanks, Professor Stone.

Suppose a customs inspector has reasonable cause to believe that a pirated compact disc is inside an envelope (i.e. that the disc unlawfully contains copyrighted music). Then there is reasonable grounds to open the envelope, in order to read/scrutinize the compact disc. Also, since the envelope is unsealed at that point, customs regulations would not forbid the inspector from also reading any accompanying correspondence, at least assuming the CD did turn out to be contraband.

All of this seems analagous to what NSA has allegedly been doing. No humans intrude into private communication until search engines detect reasonable cause to do so. Instead of copyrighted music, equally illegal material is detected: plans for making war against the United States. I just find it kind of peculiar that the Fourth Amendment would protect war plans more than it protects copyrighted music.

In the 1930s, Secretary of State Stimson said, "Gentlemen do not read each other's mail." Stimson therefore shut down the State Department's "Black Chamber" cryptanalyst team, crippling U.S. intelligence operations and contributing to Pearl Harbor. Maybe Stimson was right as a moral matter, but I'm concerned that we are vulnerable today to something much greater than Pearl Harbor.

Do you think that the Fourth Amendment protects war plans in a sealed international letter more than it protects a pirated music CD in a sealed international letter?

[Alan Meese]

Four Comments:

1. It seems to me that Professor Stone's effort to leverage Kieth to the present situation fails for two interrelated reasons.

First, Kieth itself contains the following language:

"[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were [407 U.S. 297, 309] "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government" (emphasis supplied). There is no evidence of any involvement, directly or indirectly, of a foreign power."

Second, Kieth did not involve the President acting as Commander-in-Chief, pursuant to a lawful delegation of warmaking authority vis a vis a foreign power. The delegation here contemplates that the President will preempt attacks abroad before they occur here. These circumstances would seem to distinguish the present case from one in which the President is acting as a civil law enforcer, looking backwards to detect and punish crime that has already occured. (E.g., conspiracy in the Kieth case.) Put another way, there is a stronger governmental interest in the present case that militates in favor of a finding of reasonableness that was not present in the Kieth case, even though, as Professor Stone properly says, the privacy interest is the same.

Presumably Kieth reserved the foreign intelligence question for a reason. Perhaps it realized that, in the context of an actual war with a foreign power, the balance might tip differently.

2. I am not sure I understand Professor Stone's response on the customs search question. Why is it "reasonable" to open my luggage and inspect it thoroughly without even probable cause --- something agents have been doing for 200 years ---
but unreasonable to open my mail? The fact that a statute prohibits the practice does not mean that the practice would violate the 4th Amendment. Congress prohibits lots of government practices that are perfectly constitutional.

3. If historical practice is relevant, is there not a historical practice of warrantless foreign intelligence searches ? Is there any decision that has held such searches to violate the 4th Amendment? (Note that Katz expressly reserved the question of foreign intelligence searches.) If not, does not practice cut in favor of the President here?

4. The Pearl Harbor analogy is an interesting one. Let's say that, after the declaration of war on Japan, the Admiral commanding Pearl Harbor suspects that a US Citizen near Pearl Harbor is transmitting information to a submarine off the Coast. Must the Admiral convince a judge to obtain a warrant before listening in? Can anyone cite a case involving such surveillance in which a court required such a warrant, or even probable cause? Is this hypothetical distinguishable from the present case?

5. Finally, Professor Stone says that defenders of the snooping "attacked its critics as 'hysterical'and 'irresponsible.'"
It may be that some defenders have done so. I have not. Instead, I have just said that I respectfully disagree with Professor Stone and others who take issue with the President's plan.

[Geoffrey Stone]

1. I think the Fourth Amendment "protects" war plans "in a sealed international letter" in the absence of probable cause and a warrant. Do you really think the government can constitutionally read all international mail and listen-in on all international telephone calls just because they are international?

2. I acknowledged that there is no Supreme Court decision squarely holding the Bush spy program unconstitutional under the Fourth Amendment. My argument is that the logic of Keith, and common sense, suggests that the two situations are not so different to justify significantly different outcome.

3. The commander-in-chief power in relevant, but not much in this situation. This is so for two reasons. First, Congress has prohibited the activity in FISA. As Justice Jackson noted in Youngstown, that leaves the Article II power at low ebb. Second, there is no tradition of Presidents monitoring the correspondence and communications of American citizens, even with people abroad, merely because we are at war. This is a far cry from the ordinary powers of the "commander-in-chief" of the army and navy.

3. Alan, you are always polite and appropriately respectful. My comment was directed to some statements in the mass media, not to those on this blog!

[Andrew Hyman]

Thanks again for your comments, Professor Stone. I see you've authored another, more recent post regarding FISA. Anyway, in this thread, you asked if I "really think the government can constitutionally read all international mail and listen-in on all international telephone calls just because they are international." No, certainly not under present circumstances. But perhaps that's not what's happened here. Installing an automatic siren that goes off whenever someone mentions the phrase "the best day to attack" during an international phone call, and then eavesdropping only if the siren goes off, seems different to my mind from listening in on all international phone calls.

Anyway, I guess we'll see how this whole thing plays out. As always, it will of course be important to remember that there are people of good faith (and bad faith) on both sides of the argument.

[John Lederer]

"Second, there is no tradition of Presidents monitoring the correspondence and communications of American citizens, even with people abroad, merely because we are at war."

I could send a letter to Herr General Rommel in 1944 confident that it would not be read by US authorities?

[John Lederer]

"1. I think the Fourth Amendment "protects" war plans "in a sealed international letter" in the absence of probable cause and a warrant. Do you really think the government can constitutionally read all international mail and listen-in on all international telephone calls just because they are international?"

But, of course, that isn't the question in regard to American citizens, unless Bush is lying.

The question is whether we may read international communications to and from the enemy and people in the US, when the US is an active theater of operations.

[RandallS]

Prof. Stone:
RE: YOur NSA Fourth Amendment Review
Jan 2 Post
Digital "Border Detention and Search:"
Similarity between unique situation posed by multi-directional flow of boat traffic connected to open seas,(that allows for Fourth Amendement exception) and multi-directional flow of international digital traffic, might provide a nuanced exception to cause/ suspicion/warrant requirement, especially when dovetailed with reduced expectation of privacy at or near borders, nature of the technology of digital communications, and the compelling national security issues involved.

Discovered VILLAMONTE-MARQUEZ, 462 U.S. 579 (1983) when I was reviewing nominee Alito's record. He argued government's case before the SC and was on the brief. Marquez provides an interesting twist that supports proposition that digital surveillance of incoming/outgoing international digital traffic arguably falls within ambit of the functional equivalent border search exception to fourth amendment cause/suspicion//warrant requirements.

As you are aware, border and border functional equivalent exception to the fourth Amendment requirement that warrant issue based on cause/suspicion is well settled as we all can attest as they search our bags at airports etc. Leaves REASONABLENESS of NSA intercepts of domestic digital flows as singular 4th Amendment test of functional equivalent proposition.

The “functional equivalent” of a border is generally the first practical detention point after a border crossing or the final port of entry.
[Thirty-First Annual Review of Criminal Procedure; Border Searches, 90 Geo. L.J. 1087,1190 (2002).]

A functional equivalent search is present when (1) a reasonable certainty exists that the person or thing crossed the border; (2) a reasonable certainty exists that there was no change in the object of the search since it crossed the border; and (3) the search was conducted as soon as practicable after the border crossing.[ United States v. Hill, 939 F.2d 934, 936 (11th Cir. 1991)]

Examples of functional border equivalent include international airports located within the heartland, constructive seaports located within territorial waters connected to the sea [Almeida-Sanchez v. United States, 413 U.S. 266, 272-73 (1973)]

Review and approval will likely turn on the fact of no alternative. As you are aware, individual digital communications are divided up into "packets," each packet is given a destination address, each respective packet then traverses a different route, and all packets are NOT re-assembled until they reach the point of entry: a computer in the United States. However, encrypted communications send parts of the packets to different addresses, and they are then re-addressed, and then sequentially and independently each packet is ultimately provided the final destination address. Only at the final destination address is the whole communication reassembled. Arguably, therefore, the form of the diffuse packets as they enter the border across different routes makes detention prior to or at the actual physical border point of a entry not a practical alternative. The only practical secondary digital detention alternative becomes at the "data port" point of entry in the United States where the diffuse packets are reassembled.

The Fixed Secondary location requirement as applied to digital surveillance border search presents some problems.

You will recall above the nexus test requires fixed poit searches. Leading edge digital surveillance fundamentally involves warrant less, suspicion less RANDOM temporal detention and search of digital communications performed by software driven by super computers conducting instantaneous ROVING PATROLS of information highways (..But where is Al Gore?) looking for certain patterns/data /header address characteristics etc.

ROVING border patrol agents have been deemed to lack the authority to conduct RANDOM STOPS without cause or reasonable suspicion , and therefore roving stops are not within the functional equivalent border search exception. United States v. Brignoni-Ponce 422 U.S., at 880

Using rationale similar to those posed in VILLAMONTE-MARQUEZ holding, The Court likely will nuance the issue by recognizing that the infinitely multi-directional "flow" available to digital streams coursing into and out of the country is different from the linear flow of automobiles on roads.

By extension, the digital highways that digital traffic streams through are more analogous to water born traffic plying waters connected to the open sea. The Court has a 200-year tradition of finding waterborne random detentions conducted by roving patrol boats manned by government agents so designated by Congress to be a reasonable functional equivalent border search exception. The rationale for the Court's finding distinguishing boats and cars is at borders is that fixed permanent checkpoints would be impractical to place on waterways where '....vessels can move in any direction at any time and need not follow established "avenues" as automobiles must do.'

The court on that basis will likely make a distinction between ROVING BORDER PATROL AGENTS in automobiles making RANDOM stops and searches and ROVING governmental SOFTWARE making temporal digital detentions. One rational for the holding was that to allow such a practice would grant to much discretionary authority to loan officers without on site review by supervisors or public to deter and recognize abuse of the authority.

The primary and sole purpose of the waterborne stop is to Detain, NOT to search.
Reasonableness of waterborne detention derived was premised on administrative requirements: check manifest/records etc.. The scope of the boarding party conduct was limited to inspection of documents and '...visual inspection of the [vessel]... limited to what can be seen without a search'

The primary Purpose of the NSA digital surveillance is to (temporally) search. Technically, the search cannot be incidental. Of necessity, the NSA software must open data packets in order to transpose the digital data into a readable format. The software then must process the data through a series of iterative loop procedures that reads the communication and compares to communications searched for. (patterns. words, sounds, numbers...) The NSA detention thereby substantially exceeds the scope of the intrusion allowable in waterborne traffic administrative detention.

However, given overarching compelling purpose of NSA to deter and interdict potential attacks on the US, NSA digital surveillance likely will fall under ambit of 'special needs exception...stemming from the extraordinary situations with a purpose beyond standard law enforcement that faces the nation...' In re: Sealed Case No. 02-001, November, 2002

The larger question is: What do we do next to protect privacy from executive branch abuse?
RandallS.

[Joey]

"Second, there is no tradition of Presidents monitoring the correspondence and communications of American citizens, even with people abroad, merely because we are at war."

All of my Grandfather's letters home during WWII were open, read, and in some cases, censored. I have them. He was in the US Army, not the German Army. After he was wounded at Anzio Beach he censored GI's letters while he recovered in the hospital.

Also, Lincoln and Davis both monitored telegraph transmissions during the Civil War. Did they need warrants?

If a tank commander hears enemy communications bleeding over onto his channel should he turn it off and email the FISA Court for permission to listen in?

Since when did the courts assume the authority to decide who listens to signal intelligence? And why would anyone communicating with Al Qaeda, Hamas, Hezbollah, et al have any expectations of privacy?

[Jeff Adler]

Good to see a fellow in the cause of truth. I have also contended that the 4th amendment violations of the administration are actionable. As a people we need to stop only talking about these problems and take action. I invite all who read this blog to visit http:360.yahoo.com/unalianable to view a call for action.

[Jeff Adler]

Joey,
military personnel do not fall under the same legal code as civilians.
Davis didn't as he wasn't under the constitution, Lincoln probably did, although the fact that the transmissions had to go through two operators probably severed the expectation of privacy.
A tank commander probably is in enemy territory when he hears them so the 4th wouldn't apply, however if he was in the US, anything bleeding over the radio would no longer be covered by the expectation of privacy which is the reason for code.
the bill of roghts do not bestow rights on citizens but place restrictions on the govt. it doesn't matter who the person might be communicating with, the govt cant overstep its bounds ever in order to make sure that it never violates honest citizens as totalitarian govts will.